Exception to the rule: A family court has directed the Nizam of Hyderabad to pay a hefty maintenance to his former wife, Manolya Onur (above)

When Saili Halder was tortured and driven out of her in-laws’ place with her two minor sons, she had no other option but to take refuge in a charitable home. With no means of livelihood, she decided to move court to make her husband pay for her and her sons’ maintenance. Two years and many court hearings later, Saili realised that getting maintenance from her husband, who is a government employee, was a tough proposition, specially since he was resorting to every trick in the book to deprive her of alimony.

“Saili’s husband tried to show before the court that he was earning only Rs 830 per month and so tried to bring down the amount of maintenance he had to pay. But in reality, he was earning Rs 4,720. The amount he showed the court was what he received after deductions for the loan he had taken against his salary,” says Alok Mitra, Saili’s counsel and a senior criminal lawyer of Calcutta High Court. “He even tried to prove that as Saili stayed in a charitable home with her sons, she didn’t need any money to support herself and her children,” adds Mitra.

But thanks to a recent Calcutta High Court judgement, Saili will probably get her alimony at last. In a landmark judgement, Justice Arun Kumar Bhattacharya held that “residing of the wife in a place on her own arrangement at the charity and mercy of others cannot be held to amount to the discharge of the moral and legal obligation of the husband to look after his wife.” Justice Bhattacharya also explained the word “maintenance” in a new light. “The word ‘maintenance’ is not to be narrowly interpreted. It means the most reasonable requirement for existence of a person to live separately.”

Taking her husband’s income into consideration, Saili has now been awarded Rs 1,000 per month as alimony.

But Saili is among the lucky few in this regard. Many women who separate or are forced to separate from their husbands find it an uphill task to make their husbands part with maintenance for themselves and their children. This despite the fact that Section 125 of the Criminal Procedure Code clearly states that if any person with sufficient means neglects or refuses to maintain his wife or his minor children, the courts can order the person to pay maintenance to his wife and children. “The maintenance amount can be anything, depending on the husband’s income,” says retired high court judge Malay Kumar Basu. Not complying with the court’s order can even result in imprisonment for the husband.

Despite that, dodging alimony is a common enough occurrence and some husbands will go to any lengths to make sure that they do not have to pay up. “I know of cases where to avoid paying maintenance, husbands try to malign the character of the wife and try and prove that she is leading an adulterous life or that she is living separately without due reason,” says Shiladitya Sanyal, advocate, Calcutta High Court. That’s because if a husband can prove that his wife has committed adultery, he need not pay maintenance. In Saili’s case, for instance, the magistrate in a lower court questioned her moral character and held that since it was she who had left her husband, she was the one at fault and hence could not claim alimony.

Mitra also cites a case where the husband was asked to pay about Rs 1 lakh as maintenance in installments. Since the court had not specified the number of installments, the husband took advantage of this and began to pay the wife only Rs 1,000 per month. There are even cases where the husband changes his address or leaves the town or city he is staying in, all in order to avoid paying maintenance.

Yet there are ample provisions in the law to enforce payment of alimony. A Supreme Court verdict has stated that if a husband is healthy and able-bodied he will be presumed to have the ability to pay maintenance and the ability to earn money. Moreover, in cases where a husband fails to pay up, there is the provision of property attachment and that of extending his jail term.

The problem is that whenever the husband fails to pay up, the wife has to file a fresh application before the court, something that she may not be in a financial position to do. As Sanyal points out, “Many women do not have the means to repeatedly file cases each time the husband fails to pay up.” Which is why defaulting husbands often go unpunished.

No doubt, judgements like the one passed by Justice Bhattacharya will help wives take better action against husbands unwilling to pay maintenance. However, many people feel that tightening the legal loopholes alone will not be enough. Justice Basu, for instance, feels that the legal fraternity itself should be sensitised to the problems of these helpless wives. “There are laws to protect the rights of wives. But more than their theoretical implications, their practical applications should be emphasised,” Justice Basu says.